Washington – In a closely watched church-state separation case, a Bush administration lawyer urged the Supreme Court on Wednesday to shield the president’s “faith-based initiative” from legal challenges in court.

U.S. Solicitor General Paul Clement said taxpayers who believe the White House is unconstitutionally promoting religion should not be accorded legal standing to sue in court. It would be too “intrusive on the executive branch” to permit lawsuits contesting how the president and his advisers conduct their affairs, he said.

The case involves a Wisconsin group called Freedom From Religion that sued in 2004 to challenge the “faith-based initiative” on First Amendment grounds. The group said the White House officials were using public money to help church-based groups win grants and contracts.

It is the first major religion case to come before the Supreme Court since President Bush’s two appointees took their seats. In their questions Wednesday, both Chief Justice John Roberts and Justice Samuel Alito sounded as if they sided with the administration.

Roberts made it clear that he thought the group’s claims should be thrown out of court. If taxpayers can sue the government whenever an official invokes God or religion, why couldn’t anyone “sue our marshal for standing up and saying ‘God save the United States and this is honorable court’?” asked Roberts, citing the invocation heard each day when the justices enter the court.

Taking up the opposite view, Justice Stephen Breyer said courts and lawsuits are needed to enforce the separation of church and state.

“People become terribly upset when they see some other religion getting the money from the state” to subsidize their faith, he said.

“We have a pretty clear, simple rule,” he said, that allows lawsuits “when the government spends money in violation of the establishment clause.”

The First Amendment says “Congress shall make no law respecting an establishment of religion.” The issue of who has standing is technical but crucial. It can determine when and whether the government’s conduct can be challenged in court.

Normally, persons must say they have suffered a personal injury before they can sue in court. For example, taxpayers cannot sue to stop the war in Iraq simply because they disagree with it.

But nearly 40 years ago, the court under then-Chief Justice Earl Warren made an exception for challenges to spending that promotes religion.

In Wednesday’s argument, Clement urged the court to narrow that exception considerably. In one exchange, he said taxpayers should not be allowed to sue even if officials use tax money to build a church.

Clement said the government should be shielded from suits over how officials use general tax money. He agreed taxpayers could sue if Congress passed a law that distributed money directly to churches or religious groups. But it is different matter if the White House uses general funds to encourage religious groups to do charitable work, he argued.

A coalition of liberal groups filed a friend-of-the-court brief that urged the court to reject the administration’s argument.

“Tax dollars may not be used to subsidize religious activity,” said Steven Shapiro, the American Civil Liberties Union’s legal director. “Barring taxpayers from enforcing this fundamental principle in court would effectively license the government to violate the Constitution.”

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